Longtime poverty writer and television producer, Becky Johnson of Santa Cruz, Ca. shares her essays, videos, and favorite articles on the issues of the day from the faux Swine Flu pandemics, to saving lives and billions with breast thermography. From smoking bans to the Israeli-Palestinian conflict, try to keep up with Becky on Twitter at https://twitter.com/BeckyJohnson222
Robert "Blindbear" Facer, an Amish street minister, is issued a $445 citation for "unreasonably disturbing noise" when he kept a 31-year old nearby resident from napping. Jan 6, 2010 Photo by Becky Johnson
NOTE TO READER:Can u imagine? The LAW that I was convicted under for singing a few
songs in the middle of the afternoon in my unamplified singing voice in
the FREE SPEECH ZONE no less!! has been found by a Judge OUTSIDE Santa
Cruz County to be "unconstitutional"? Surprise. Surprise. Surprise. What's next? Will the City seek the courts to expunge my conviction? Will they refund the $250 of community service I performed? An apology? Or will they just find another way to drive activists and musicians off of Pacific Ave.? ---Becky Johnson, ed.
SANTA
CRUZ -- A federal judge has thrown out a portion of Santa Cruz's noise
ordinance and ordered the city to stop enforcing it.
U.S. District
Court Judge Ronald M. Whyte ruled Friday in favor of an Alameda County
man arrested in May 2010 after ignoring requests from a police officer
to stop preaching loudly downtown. William Hampsmire was cited under
the city's "unreasonably disturbing noise" rule, though the District
Attorney's Office eventually declined to prosecute.
The judge
found the ordinance -- which bans noise that is "unreasonably disturbing
or physically annoying" or "not necessary" to participate in lawful
activities -- is vague and "fails to pass constitutional muster." The
judge said determining what level of noise is necessary is subjective.
Hampsmire filed suit in the Northern District of California, San Jose Division, in May.
"I
certainly think the city should have a noise ordinance, but the
ordinance needs to be clear and measurable," said Mike Millen, a Los
Gatos attorney who brought the claim and said he has represented
Hampsmire when officers elsewhere have asked him to quiet down.
The
judge denied Hampsmire's claim that his free-speech rights were
violated and found no evidence that the arresting officer acted out of
an objection to the man's religious speech.
The case will go to trial unless the parties settle. Millen said he will seek payment from the city for his legal fees, which he estimated at $40,000.
City
Attorney John Barisone said the ordinance has been upheld a number of
times in state courts, adding, "This is really the first time a judge
has had a problem with the language in our law." He said he will work
with the City Council to amend the ordinance for clarity.
The
judge's order does not affect other parts of the city's noise ordinance,
including barring loud noises from 10 p.m. to 8 a.m. Deputy Police
Chief Steve Clark said the ruling also does not affect the ability of
officers to cite or arrest people whom they believe are using noise to
disturb the peace.
Hampsmire was preaching on the sidewalk on
Pacific Avenue at Cooper Street about 6 p.m. on a Sunday when a man in
an office about 70 feet away complained to police about the loud noise,
saying Hampsmire had been speaking for about an hour, according to a
court record. Officer Patrick Bayani responded and determined Hampsmire
did not need to be so loud, even to be heard across the street, and
asked him to move or reduce the noise.
The officer said Hampsmire
refused and told him "You're going to have to arrest me for preaching
... for my freedom of religion," according to the record. The man began
preaching even louder after handing his belongings to a woman who was
videotaping the incident.
Hampsmire was booked into jail for disturbing the peace and later released, the record said.
The
city used the ordinance in 2010 to prosecute advocates for the homeless
who sang in protest outside Bookshop Santa Cruz, which is owned by the
family of Councilman Ryan Coonerty, a vocal critic of aggressive
panhandling and other social problems downtown. The city attorney said
Friday's ruling can't be applied to previous cases.
Police have issued
121 citations using the rule since 2011, according to city records.
Steve Pleich passes Sgt. Harms and Officer Hedley as he arrives for Judge Burdick's preliminary hearing for four of the Santa Cruz Eleven. Photo by Becky Johnson
Seven defendants, also similarly charged with 75 River Street Occupation still face felony and misdemeanor charges
by Becky Johnson
April 25, 2012
Santa Cruz, Ca. -- DA Bob Lee's prosecution (some say "witchhunt") of eleven activists and alternative media journalists came to a crashing halt today as Judge Paul Burdick stopped the preliminary hearing after hearing only two prosecution witnesses.
After listening to Officer William Winston of the SCPD and Det. David Gunter's testimony, Burdick challenged Assistant DA Rebekah Young by saying "Ms. Young, you agree that none of these four defendants committed any act of vandalism."
Young offered that if there were any questions, she had brought Sgt. Harms and Officer Hedley to court "just in case." Neither could testify, of course, since neither officer was on the prosecution's witness list. Burdick ignored her and went on, "I have no evidence in this record that any of these defendants committed any act of vandalism. You are relying on an "aiding" and "abetting" theory?"
"That's correct."
"Do you have anything even by inference that anyone intended for anyone else to trespass?"
"It's more helpful, of course," Young offered," if you have defendants who actually committed the crimes while simultaneously witnessing 50, 80 others who also entered the building,"
"I'm concerned the evidence merely shows that the entire group was marching, as the flier explained 'to a foreclosed property' and intended to protest in front of the building. Do you have any evidence that suggests anyone intended to do anything other than mill about and not enter?"
Burdick continued. "My sense of what the evidence established, was that almost immediately someone entered the building. The officers testified there were "no signs of forced entry." Ms. Young, you need to establish that these four defendants intended to enter the building, occupy for a period of time, and stay after being ordered to leave. There isn't anything in the evidence to infer that they did.
All you've shown is that as part of the protest, when like others, they saw the doors were open, they went in and out to see what was happening."
SCPD police evidence photo of SENTINEL reporter, Jessica Pasko photographed parking on the property and walking to get her story on December 1st at 75 River Street. Pasko was not charged.
"Your Honor, there's no fun in taking over a building you're allowed to be in. That was the point. To break the law."
"And, you've presented no evidence that any of them were in the building after November 30th."
Young: "You have to look at the group as a whole. They were meeting in concert with other protesters. Protesters, some of who were outside the building with their arms clasped."
SCPD evidence photo of protesters, some with arms locked, standing together outside 75 River Street on November 30th. Photo is time stamped at 4:24PM, more than 3 hours before police testimony that protesters were warned they were trespassing and must leave or be arrested.
"None of the four here."
Young: "Some were with bandanas covering their faces or hiding their identity. They knew they were trespassing."
Burdick: Ms. Young, you have presented no evidence that they wouldn't leave quietly if asked.
You paint with too broad a brush. The evidence is insufficient that anyone intended to commit trespass by design or agreement with other parties. I move to discharge all four defendants. Someone did commit a crime in that building. Crimes were committed by some individuals, and we don't condone this behavior, but the evidence does not show it was done by these individuals."
Young: I will move to refile charges against Franklin Alcantara and Cameron Laurendau. We have video as explained by Det. Gunter, of Mr. Laurendau inside the building."
Burdick: And it was in the daytime. Testimony was that the warning given by Sgt. Harms was after dark. And Gunter's testimony is not credible. Gunter testified on March 13th that he was not present at 75 River Street on December 2nd. On Monday, April 23rd, he testified he was present at the building on December 2nd. His testimony is discredited.
Stunned audience members struggled to remain under control.
Linda Lemaster celebrates the dismissal of charges against Franklin "Angel" Alcantara, Grant Wilson, Cameron Laurendau, and Edward Rector by Judge Paul Burdick on April 25th. Photo by Becky Johnson
But minutes later, outside the courtroom, defendants, family members, and supporters celebrated with smiles all around. While seven are still charged with felony conspiracy to trespass and vandalism as well as misdemeanor charges, the news for the remaining defendants is very good. Unless the police and DA come up with some new evidence that they haven't uncovered in nearly five months after the occupation of the vacant bank building, chances are poor that Young can get a conviction.
Those wishing to sign the petition to Free the Santa Cruz Eleven are invited to do so at santacruzeleven.org
COMMENTARY BY ROBERT NORSE
Becky: I'm amazed and delighted with this story. I don't know how you
could write down so many details so fast. I tried and now have to
decipher my own handwriting. Glad you took the time and trouble.
HOLD THE HOOPLAH
I'm less celebratory than many about these dismissals (though they're
definitely a good sign). A local attorney advises me that because
Burdick declined to dismiss the charges "with prejudice" they can be
refiled. This is what Young said she'd do in the cases of Angel and
Cameron. She also suggested she'd be reviewing the cases of Ed and
Grant.
Further, Burdick denied a motion by Angel's lawyer,
Rubin, to sanction D.A. Young for prosecutorial misconduct. Young
apparently presented briefings to the judge that she didn't supply to
the defense. She also presented Gunter's contradictory testimony that
seemed to indicate he was either mistaken or lying about being present
on December 2nd.
It wasn't clear to me whether these two
actions or some other eager blunder by Young was the focus of Rubin's
motion, but Burdick summarily denied it. Had Burdick actually granted or
even held a hearing about Rubin's motion to hold Young accountable it,
it might have actually had a future deterrent effect on the
color-by-numbers “being-in-the-building-is-a-conspiracy” prosecutor.
Instead it appeared Burdick was doing all he count to counsel and coach
Young in her next appearance (read: refiling of charges). His advice
may give her what she needs to provide to give a patina of plausibility
to this costly charade and mechanically refile charges with new police
witnesses.
ONE POSITIVE NOTE
On the upside,
Young's office--in my case--after four failures to provide video tapes
requested, advised me yesterday that she's finally turning over video,
available a week before to other defendants.
I hope to post
some of it on-line to show the extent of local interest in this attempt
to reclaim space. (Those worried they might be fingered as
“co-conspirators” should know that the D.A. already has all this video,
so it's nothing new to them.)
We're still waiting for her to
provide supplementary police reports and other evidence—still ignored in
our requests.Indeed on March 13th when Young failed to give a date for
handing over all the evidence in my case, Burdick set the date for a
Motion to Compel her to give over this stuff May 18 8:15 AM in Dept. 6.
No other attorney to my knowledge has filed such a motion--which makes
me wonder how they're spending their time.
Yet court, D.A., police, defense, and community time and money is going
to continue to be showered on this political attack on Occupy Santa
Cruz and local activists.They may put even more energy into this phony
prosecution because part of their dirty underwear has been exposed
here..
PAST TIME TO FIGHT BACK
Which means we
need to get more organizations on board demanding these charges be
dropped. We need more protests organized at the courthouse. We need an
attorney to ready a civil lawsuit when and if these charges are dropped.
(Perhaps Grant or Ed could start even now, if their charges aren't
refiled.).
Every day that a defendant is under the toxic
pressure of this prosecution. Every hour she or he loses from work.
Every instance of discrimination in employment or housing that results
from this smear job--should be compensated for. And the unrecoverable
cost is even greater: How many have been deterred from active protest by
this chilling witchhunt? How many are frightened to speak their mind or
raising his voice against the greater criminals--the Wells Fargo
banksters, the Drug War prison pushers, the Obama/Romney warmongers, the
local authorities who routine crush homeless lives?
One
"liberal" City Council candidate who recently announced his campaign
nervously declined to wear a "Empty Buildings are THE crime. Free the
Santa Cruz Eleven!" sticker because it was too "controversial". Another
City Council member clearly in the building has maintained a silence on
this issue instead of denouncing the proceedings. And we haven't heard a
peep from The Sentinel and Patch, both of whom had “trespassers” in the
building whose identities are known to the police.
The
effects of this buckshot attack on Occupy Santa Cruz has had cascading
effects that undermine all serious political dissent. For the health of
each of us and of our community, it's time to fight back.
NOTE TO READER: Judge Paul Burdick refused to allow Assistant DA Rebekah Young to use photos which were never provided to the defense. Despite over 600 photos being turned over to defense attorneys, none of the photos Young intended to use in court on Monday were among them. Defense attorneys also sought video footage shot from the police car of Officer William Winston and Officer Forbus, mentioned at the Preliminary hearing on March 13th for Alex Darocy and Bradley Allen, but yet to be produced. Also, footage of defendant, Cameron Laurendau was referred to by Det. Guntner on the stand, but had not been turned over to Cameron's attorney despite being 4 and half months AFTER the crime and over two months since the indictments were handed down. Interestingly, Guntner testified that on Dec 2nd when he accompanied Officer Hedley in posting "no trespassing"notices, that none of the officers spoke to the defendants. Yet, in the video posted by DA Bob Lee online on youtube, you can clearly SEE a police officer discussing something with defendant Laurendau, after he's exited the building (and within 2 minutes of officers posting the notice), an act which Guntner testified "never happened." Inexplicably, the clip has been stripped of its soundtrack so the public can't know what the content of that conversation was. The preliminary hearing continues on Wednesday at 10:00AM in dept 6. The remaining defendants, myself included, face a preliminary hearing on May 29th at 1:30PM in Dept. 6. --- Becky Johnson, Ed.
Judge still mulling charges against 4 accused in takeover of former bank
Protesters link arms as the face off with Santa Cruz police last... (Shmuel Thaler/Sentinel
SANTA
CRUZ - A judge declined Monday to issue an immediate ruling in the case
of four people charged in connection with the takeover of a former bank
last year to allow more time to research the legal issues involved.
"At first blush, I think the people may have some problems with these
four defendants," Judge Paul Burdick said, after hearing the
prosecution's evidence in a preliminary hearing Monday.
Cameron Laurendau, Franklin Alcantara, Edward Rector and Grant Wilson
are among the 11 people charged after the takeover of the former Wells
Fargo Bank at 75 River St. in late November and early December. They
face felony charges of conspiracy and vandalism along with two
misdemeanor counts of trespassing.
Detective David Guntner of the Santa Cruz Police Department, who led
the investigation into the nearly 72-hour takeover, testified about the
evidence, primarily photographs, used to identify those charged.
"Who vandalized the bank?" Alcantara's attorney, Jesse Ruben, asked.
"I don't know," replied Guntner, who said he viewed video of
Alcantara entering and exiting the bank, but he didn't know how long he
remained inside.
Those involved in the bank takeover left peacefully after nearly 72 hours of negotiations with police.
Burdick said the case posed a number of legal issues, including a
lack of evidence proving the four defendants entered the building after
being requested to leave. He ordered all four defendants, their
attorneys and prosecutor Rebekah Young back to court Wednesday, when
he's expected to issue a ruling on whether to hold the four to the
charges.
Supporters of the so-called Santa Cruz Eleven have said the District
Attorney's Office is prosecuting the constitutional right to protest. In
a letter published in the Sentinel earlier this month, the American
Civil Liberties Union's Santa Cruz County chapter called for the
charges to be dismissed.
Last month, a judge dismissed the vandalism charge against two other
defendants, Alex Darocy and Bradley Allen, but held them to charges of
felony conspiracy and misdemeanor trespassing. The two, whose attorneys
say they were at 75 River St. acting as journalists, are scheduled for
trial next month. A preliminary hearing for the other five defendants is
still pending.
Follow Sentinel reporter Jessica M. Pasko on Twitter @jmpasko96
The Shareholders Meeting inside 75 River St. Photo courtesy of Bradley Stuart
by Becky Johnson
Santa Cruz, CA. --- On Wednesday, a splinter group roughly formed out of Occupy Santa Cruz, occupied a vacant building that years ago housed Coast Commercial Bank. The building at 75 River St. has been sitting empty ever since, providing no services to the public, no jobs for citizens, and no tax revenue to the City. In fact, a forensic accounting will most likely reveal that the empty property is providing a tax write-off to the owner to the tune of the full rent of its last tenant every month.
Furthermore, The City of Santa Cruz has a whole agency to deal with blighted properties, the Redevelopment Agency, which has failed to even address this property. 75 River Street is located directly in the center of our commercial district, sharing a lot line with our downtown post office. The fact that such a building should remain for YEARS without a tenant or business in the center of the community is a testament to the unchecked practices of the 1% (and WELLS FARGO certainly is included in that coddled 1%). Local property owner, Peter Cook laments the taking of “private property” falsely claiming that his property may be next. But unless Cook has property sitting unrented and unused in the middle of our community for years and years, he has nothing to fear.
Add that many in our community would love to rent that building and use it for a business, an organization, or for a community asset, but cannot due to the astronomically high rents charged. Meanwhile, the empty building sits year after year, taking up valuable space, and contributing NOTHING to our community.
Why haven’t our City leaders stepped in earlier and stopped this practice? And is it REALLY the proper use of public safety resources to act as the private security guards for a blighted building that the owners have been allowed to sit fallow for YEARS? These are clear signs that Vice-Mayor Don Lane, the SCPD, and the DTA are really hawkers for continuing to enrich the 1% at the expense of our community by defending the owners of properties like 75 River Street. No private party should be allowed to let their property sit for years at at time, not providing any jobs for our citizens, any tax revenue for the City, or any services for the public. Kudos to the occupiers for pointing out this wrongful policy in action.
If Lane is for real, he'd be promoting a new ordinance to fine such property owners until they get the message that owning property implies responsibility for that property by using it, not moth-balling it.
Santa Cruz, Ca. -- In my post-conviction haze, a few things are starting to gel. If I can be arrested, prosecuted, and convicted for singing two and a half songs between 2:30PM and 3:30PM on a busy downtown sidewalk, anyone can. In a flurry of post-conviction ecstasy blasted by those who want to drive homeless people out of sight/out of town, I am shrilly declared as some sort of attention-seeker and told that this case is only about me and my ego.
But this time, it's not about me. It's about all of our civil rights. It's about our personal freedom. It's about the "Broken Windows" Theory. And it's about that homeless guy with a backpack and a bedroll that can be told he can't be there simply because a citizen has complained. Well if he can't be there, then none of us can be there either. If you can't sing the blues, you probably can't say them either.
Officer Lauren Schonfield testified on the stand that she "could hear the noise from Cooper St." She knew it to be "Norse's group." But somehow that recollection never made it into her police report. There she simply states "I had walked by Norse's group five minutes earlier." When asked to testify which song she heard us singing, she said "I do not recall." This is what passes for "content'neutral" in Jeff Almquist's court.
Under "Broken Windows" the police survey the neighborhood and determine who belongs and who doesn't belong. Then the officer targets those who "don't belong" with a myriad of petty citations, some real, and some made up on the spot. The Santa Cruz Police Department openly claims that they have fashioned their policies around this disputed and Constitutionally-questionable theory.
HERE are the lyrics which members of my group, HUFF, had just been singing and of which Officer Schonfield is well aware:
SUNG TO THE TUNE OF "DOWNTOWN" music by Petula Clark lyrics by Robert Norse
8. Where are the songs on the sidewalk today?...the best have gone away— from DowntownA single complaint will have the cops out to send the singers on their way—DowntownSing a song of protest just outside the local bookshopMusic with a message means a steep fine---makes the poor stopSinging their tale.So stop singing your doubt, you'll see bigots on phonesAll calling cops outTo come downtown—muz-zel-ing those they fearDowntown—don't want your kind SO near,Downtown---watch uniforms smother our dreams 9. They don't give their names, but the cops tell the singers—"You!--Be on your way!" Downtown“We've had a complaint, so you must stop your singing at this spot today.” DowntownEveryone around you may appreciate the groovin'One heckler 's veto gives the cops excuse to get you movin'In spite of the lawThe police don't give a damn, which Constitution they're shreddingIt's all quite a sham.When you're downtown—shame on the fear that rulesDowntown—bad laws from frightened foolsDowntown— Sing Out and Recover Your DreamsDowntown—Grinding Us Down;. Downtown—Silencing Sounds. Downtown.
The pendulum has swung too far to the right. The City Council is engaging in an orgy of civil rights violations which include banning sitting on the sidewalk, lying down, holding signs, drawing with chalk on the sidewalk, gathering together peaceably in groups, and now has taken a stand against singing. And in their own designated "free speech" zone too! It is time to turn that pendulum back.
Repeal CYNTHIA MATHEWS "move-along" law as the oppressive and unconstitutional fiasco it is. Repeal RYAN COONERTY's parking lot/garage "trespass" law as Scroogian in its inception. Repeal DON LANE's anti-smokers law which was built on junk science and is unenforcable. And before we do anything else, repeal that God-damned, infernal abomination also known as the SLEEPING BAN before our collective souls get any blacker.
photos: courtesy of Santa Cruz SENTINEL all photos by Shmuel Thayer April 16, 2010 in Dept 5 before Judge Jeff Almquist.
Santa Cruz, Ca. -- The City's "Go to Sleep; Go to Jail" campaign suffered defeat with two "Not Guilty" verdicts after a four-hour contempt hearing for Anna Richardson and Miguel deLeon. Judge Timothy Volkman returned to the plain language of MC 6.36.010c which makes sleeping, even on blankets, even with your possessions around you, a legal activity during the day if you have no intention of remaining overnight and haven't "set up a campsite", no matter how much that infuriates police officers who want you to move along.
BREAKFASTING WITH THE BIRDS
The day began outside the main entrance of the courthouse at 8:15 AM with a free breakfast provided by Joe Schultz, soon to open a new restaurant downtown on Front St. Schultz has long been a supporter of homeless protest actions in Santa Cruz, a rare exception to the cowed, indifferent, or hostile response of many merchants downtown.
The Downtown Association, whose former executive director Peter Eberle, voted to end the entire Camping Ban in 1999 when he was on the Homeless Issues Task Force has since refused to even discuss modifying the Sleeping Ban sections of the camping ordinance under the leadership of its new director, "Chip".
Over a dozen homeless people munched coffeecake, sipped coffee,and spoke out about their experiences outside. Curbhugger Chris Doyen passionately denounced the existing laws that target homeless survival behavior like sleeping and sitting in public places. Congressional Candidate and Attorney Ed Frey (pronounced "fry") described his appeal of the case of Robert "Blindbear" Facer on the grounds that waking people up is torture and requiring people to wake up, get ticketed, move, and get a letter asserting what everyone knows--that there's no shelter--is cruel & unusual punishment.
Anna Richardson's pro bono Jonathan Gettleman, decked out in a dark court-friendly suit, said his main focus today would be keeping his clients out of jail. "Compassion, not more punishment" is required, Gettleman noted, adding "everyone knows the shelters are wholly inadequate. People don't want to be treated like they're in prison just cause they want to sleep..."
JUDGE VOLKMAN'S INITIAL POSITION
Initially things didn't look too good. Attorneys Mark Briscoe and Jonathan Gettleman sitting alongside defendant Miguel deLeon faced City Attorney John Barisone. Judge Volkman dismissed all of the defense's concerns about the May 2009 Injunction itself being improper, the minute order served not matching Barisone's final language, and Barisone's affidavit being incomplete. The complaints were police reports and citations from three officers, one of whom, Officer Martin, was on vacation.
Barisone decided (ill advisedly as it turned out) to proceed with the case without Officer Martin, who was apparently 50% of his case. The one point the Gettleman/Briscoe defense team won was a ruling from the judge that "proof beyond a reasonable doubt" was the standard the City Attorney had to meet, since the penalty involved possible jail time and was hence 'quasi-criminal". Some thought the reason Barisone was using a Civil Injunction was to evade the need for a real trial with a high standard of proof and more protections for the defendants.
Barisone also chose not to use the "three infractions ignored makes a misdemeanor" law which he and City Council added to the city code in January 2009 over the objections of homeless advocates. Did this mean that the two homeless musicians had either dealt with all their citations, or hadn't gotten three since May 2009? Or was Barisone simply using a procedure with less protection for the defendants (a civil Injunction that seems to circumvent the need for a jury trial, is not susceptible of appeal, and provides for no appointed public defender)?
The "case" for contempt itself involved four incidents of police contact between the two and Officers Winston, Forbus, and Martin. The issue wasn't sleeping at night or sleeping at all, even though the cops woke them up, prompting their anger. The issue was "setting up a campsite with the intention of remaining overnight" downtown in the "forbidden zone" created by Barisone and ratified by Judge Burdick in May (http://www.santacruzsentinel.com/ci_12483386?IADID=Search-www.santacruzsentinel.com-www.santacruzsentinel.com).
Three witnesses testified--Officers Forbus and Winston and homeless expert Linda Lemaster. Forbus and Winston are downtown beat officers under the jurisdiction of Sgts. Harms and Garner, to whom they reportedly pass on reports of all contacts with the two targeted homeless musicians. Lemaster previouslly served the city as Chair of the Commission for the Prevention of Violence Against Women and of the Homeless Issues Task Force. She is currently on the County's Homeless Action Partnership.
THE ISSUES AND LINDA LEMASTER'S TESTIMONY
The key legal issues under scrutiny were (1) what determines whether a person as "set up a campsite" and (2) what is the standard for proving they had "an intention to remain overnight". Both connditiosn are required to cite and convict someone during the day under MC 6.36.010c. At night just sleeping or covering up with blankets after 11 PM is itself illegal on all public property, on much private property, in any structure that isn't a house or hotel, and in any vehicle parked on public property. A third was whether the presence of homeless possessions next to an individual sitting, lying, or sleeping was itself significant or sufficient evidence of a campsite and an intention to remain overnight.
Lemaster testified there was a waiting list for storage lockers at the Homeless Services Center and insisted that commercial storage lockers are out of reach for anyone without a stable income. She talked about her own difficult experiences when a homeless mom. Barisone vigorously cross-examined her, suggesting that lockers were available for storing homeless property without even hinting at any evidence. He volunteered that homeless failure to apply for shelter and services indicates a conscious scofflaw mentality and not a function of the wearisome homeless treadmill. Finally he ignored the well-known and unchanging lack of shelter space and services. "Many homeless people stop trying," said Lemaster. "They are pressured over time to give up on waiting lists and application hurdles in order to stay focused on immediate survival needs."
Lemaster subsequently claimed that numbers of local homeless people exceed access to even momentary public aid by a facto of more than 15-1. "Homelessness," she noted, "is a growing epidemic that will not be resolved by municipalities." "It is profoundly immoral to simply pluck out the most egregious presences on Pacific Avenue, while ignoring the forces that destroy everyone else outside until they get sick or angry or messy or die."
Not discussed at all were the difficulties involved even when Armory shelter space is available. Shelter space is never available in the late spring, summer, and early fall for 95% of the chronically homeless who apply, according to Lemaster. Requirements include: Show up early and so miss work opportunities; Face what some call unhealthful conditions sleeping in a room on the floor with many coughing and sick people; Show picture ID; Deal with what some have described as discriminatory treatment by ill-paid staff and Armory personnel; Abandon most of one's property during the night; Accept sexually segregated sleeping conditions; etc. etc.
BAD SENTINEL REPORTING
Sentinel reporter J.M. Brown sat through the proceedings and wrote a heavily merchant-friendly story. It mostly ignored the deeper legal issues and repeated deceptive and incomplete descriptions from prior stories. J.M. Brown cast the two defendants in a bad light, highlighting merchant fears and unproven allegations. (See "Judge dismisses some charges in preliminary injunction against S.C. couple accused of violating city's camping ban" at http://www.santacruzsentinel.com/ci_14711762?source=rss).
Brown nowhere mentioned the costs of the proceeding nor indicated the bizarre nature of the patently fraudulent charges (even under the abusive wording of the Injunction covering downtown sleeping and the absurd Sleeping Ban making it illegal everywhere else). Apparently he didn't think to ask the City Attorney: "Why would you think that two people sleeping at midday with their possessions downtown constituted a campsite?" "How could that possibly mesh with the wording of the law and the Injunction?" "Why would you spend city time and money and waste the court's time with this?"
Reporter Brown repeated the unproven, irrelevant, and inflammatory charges of "bathing in a fountain", "destroying trees" , "trespassing" and other claims rejected in the May Injunction hearing, Those smears were not permitted in this contempt hearing which was specifically held to determine only whether the two were violating the Camping Ordinance in the forbidden Downtown zone--the only behavior the Injunction bans, and the only "crimes" alleged.
It was not proven at the May 2009 hearing that created the original injunction that Richardson and DeLeon were a Public Nuisance, simply that they were regularly charged (but not convicted) of violating the unconstitutional Sleeping Ban. This alone was the grounds for labeling them a "nuisance per se", not any substantial nuisance behavior. Thus was created this unique Injunction which bans an essential human function--sleeping, and set the two up as police targets. Not because their behavior specifically injured anyone, but because nighttime homeless sleeping is and has been illegal in Santa Cruz since 1978.
Brown used [phrases like "vagrancy"--an outdated and prejudicial epithet which criminalizes poor people outside for their status). "Years of negative public perception about safety issues" echoes a paranoid merchant perception--but the two are not charged with any violent crimes. Brown quotes Mayor Rotkin at length, who as usual talks out of both sides of his mouth--professing compassion for the homeless, but supporting the Sleeping Ban--which makes homeless people criminals for a life-sustaining act. All that De Leon and Richardson were charged with was sleeping during the day. Iinstead of grilling Rotkin on where homeless people can park their bones or researching the shelter realities, Brown simply mouths authority propaganda.
Misleading and sloppy reporting includes such comments as "limitations on loitering". There is no such crime; City Council under pressure from gentrification advocates and merchants intent on blaming homeless people for the economic depression has made more than 95% of the city's sidewalks in business districts a crime to sit on, and peacefully spare change on. A huge expanse has also been made forbidden territory for political tabling or busqueing.
MY RESPONSE TO THE SENTINEL STORY ON THEIR WEBSITE
I wrote the following commentary in response to Brown's Sentinel article which covers some more points (somewhat modified in this reprinting):
City Attorney Barisone's arrogance strikes again. As with another recent case where he's wasted over $100,000 of the City's money (and intends to waste more), this one was a really bad call.(See http://www.santacruzsentinel.com/localnews/ci... )
Anna and Miguel were sleeping downtown during the day--an activity not forbidden by Burdick's injunction. But when harassed by Officers Forbus and Winston, they refused to move (as was their right since they were doing nothing illegal). So maybe the two officers, out of resentment that their heavy-handed authority was being properly and caustically challenged, wrote phony tickets without probable cause to further intimidate the two.
The tickets "worked" in that the two defendants gathered together their possessions and left. They also provided grist for Sgt. Garner and Barisone's stalking agenda: holding the two in contempt and jailing them.
However, sleeping during the day is not "setting up a campsite" and even a judge nervous about offending the merchants and politicians knows that. It may show the depth of Barisone's arrogance (or perhaps his indifference--after all, he gets paid regardless) that he proceeded to drag these two into court on what were obviously false charges.
Further aggravating the situation for those of watching the trial was the fact that apparently the cops did not say they'd gotten any specific complaints about the two sleepers. It was just two thugs in uniform showing their power or currying favor with the city attorney--at what may ultimately be a significant cost to the city.
Exerting naked power against people--even poor people--can piss them off, especially when it's illegal.
Volkman had no choice but to find the accused not guilty of contempt. Barisone should have known that from the getgo. Barisone and his two cop witnesses should be held liable for harassment as well as misuse of public funds.
Even those whose agenda is characterizing visible homeless people sparechanging downtown as "bums" should get together to dump these incompetents.
Ironically sleeping during the day is the only legal option for all homeless people in Santa Cruz since sleeping at night is banned under MC 6.36.010a.
So Anna and Miguel sleeping at 1:40 PM and 5:20 PM in the afternoon were actually trying to follow the law.
Present in the audience watching this farce were Mayor Rotkin, Councilmember Robinson, Julie Hende, and no doubt a number of other notable bigoted bureaucrats. Boy, bigotry is bad, but stupidity when mixed with bigotry is even more ludicrous. And making a public spectacle out of this makes them all a laughingstock. Which, given the abuse they're trying to bring to homeless people, is what they deserve.
Those interested in real solutions should consider how much cheaper it would be to set up a campground and acknowledge the clear and present reality the immense shelter deficiency in Santa Cruz puts the City in very vulnerable spot legally and wretched position ethically.
TIME FOR ANOTHER KIND OF INJUNCTION?
The one positive thing to come out of this case (other than exposing the incompetence and/or corruption of the police and city attorney) is the revelation that police are now (perhaps under instruction from their supervisors) misuseing section c of the camping ordinance--which says folks can be ticketed anytime if they're "setting up a campsite with the intent of remaining overnight".
This means there is no "safety zone" as Vice-Mayor Coonerty insisted several years ago, that allows homeless people to sleep during the day and so makes our city different from Los Angeles, San Diego, Laguna Beach, and other places that have had courts overturn their Sleeping Bans.
It may be time to go back to court with a lawsuit--and this time the Injunction will be against the City and the Police, and not against homeless sleepers.
COMING UP SOON: SINISTER SONGSTER CITATION TRIALS
Two homeless activists, a homeless musician, and an innocent passerby were falsely given $445 citations last January for singing political songs in front of the Bookshop Santa Cruz. Officer Shoenfeld refused to say herself whether the singing she heard at 3 PM on a Wednesday afternoon, was "unreasonably disturbing". Because the singers refused to move, but did agree to sing more quietly (and stopped singing at Shoenfeld's request), Sheofeld apparently orchestrated the citizen's arrest from a resident of the St. George---Simon Reilly by falsely informing Reilly that the singers refused to sing more quietly.
On March 25th at 1:30 PM in Dept. 10 (the basement of the County Building) the innocent bystander, a teacher named Michelle, will go to trial in the court of Commissioner Kim Baskett.
On March 26th at 10 AM, activist Becky Johnson will go to trial in Dept. 1 (first courtroom to your left as you pass the metal detector) in front of Judge Symons.
On April 27th, Robert "Blindbear" Facer is due to go to trial at 1:30 p.m. Dept. 10.
HUFF (Homeless United for Friendship &; Freedom) will likely be sponsoring an outdoor meal to encourage the community to have a bite to eat and then witness the proceedings in the hopes that these ridiculous charges will be dismissed, encouraging the police not to use citizens as catspaws.
Judge Volkman at the Injunction Contempt Hearing commended the audience for coming and the presence of the audience may have had a positive effect in helping him hold the line against a lawless city attorney whose main concern seems to be running disfavored homeless people out of town or out of sight.
Video of Ed Frey after winning a dismissal for his client, Sharon Paight.
"She's the Red Queen. She does whatever she wants." --- Attorney Ed Frey Aug 21, 2009
by Becky Johnson
Aug 22 2009
Santa Cruz, Ca. -- About eight years ago, Sharon Paight was working as a CNC machine operator when the business ended its local operations and moved to Guadalajara, Mexico. Sharon was not offered a job in Mexico, and due to an economic downturn, could not find another job in her field.
She received severance pay and unemployment insurance for a year, but eventually that ran out. Around this time, her housing situation ended and she moved into her car. She considered this to be a highly temporary situation, to be rectified as soon as she was able to get another job. However, there was such a general economic downturn that no job was forthcoming. The only job she was able to get was through Labor Ready. She worked full time for Goodwill Industries at a rate slightly greater than half of her former wages. At this rate of pay, she remained unable to afford housing near her work.
In 2005, Sharon was found guilty of sleeping at night within the City of Santa Cruz.
"I could not use the National Guard Armory shelter program," Sharon explained. " In order for me to be up in time to get ready for work, I had to start my day at 4AM. You are not allowed to drive your car to the shelter, or to leave by using any other means than their bus. The earliest I could count on being free would be three hours after the time I need to be in order for me to keep my job."
"HELPING" NON-PROFITS PART OF THE PROBLEM
Sharon worked for Goodwill Industries. This non-profit was at the forefront of defeating an initiative which would have raised the minimum wage in Santa Cruz, in three steps to $9.25/hr. The CEO of Goodwill Industries threatened to move the non-profit outside of the City limits if the ordinance were to pass. It was defeated. But it's precisely because of the low wages, that Sharon could not afford housing. Then to make matters worse, Sharon's hours were cut down to part time, and then finally she was laid off completely. Today, her sole source of income is her unemployment insurance.
Sharon has been a member of the 24-HOUR Fitness on Soquel Ave. in Santa Cruz, Ca. since 1998. When she became vehicularly housed, she found the showers, bathrooms, and lockers at the facility to be a great help to her in order to stay functional and employed. At no time did anyone in charge ever express any concern about her parking her vehicle on the lot of the facility where she had a paid membership. However the neighbors complained.
On March 19th of 2009, SCPD Officer #139, Rodney Dugolow, cited Paight in the early morning hours in the parking lot of the spa. The private parking lot allows members to park there for up to three hours. Sharon, had in fact, been there for over three hours when the officer arrived. She knew she could be cited in the lot because she had been cited in 2005 in the same lot.
"That one I was found guilty. In 2005, the officer did catch me sleeping. But in 2009 I was wide awake. I watched as he circled the parking lot, before he parked and came over to my vehicle," Sharon said on a Free Radio Santa Cruz following the "trial."
"I was sitting up, wide awake in the back of my van with the light on sorting through my laundry looking for something to change into before going into the spa."
THE LEGAL CHALLENGE BEGINS
Ed Frey appeared in June before Judge Timothy Volkman (Symons was absent that day).
"I told Judge Volkman that we wanted to challenge the constitutionality of the law. We needed to determine if the law as applied to this defendant was constitutional. Does it violate the State or National Constitution?" The law in Santa Cruz Paight was cited under, MC 6.36.010 section a outlaws the ACT of sleeping out of doors or in a vehicle between the hours of 11PM and 8:30AM anywhere in the City Limits on both public and private property.
"If you can't sleep you can't live. You've got to have sleep. It's like you've got to breathe," Ed explained. And although years ago Judge Thomas Kelly ruled the Sleeping Ban is constitutional because "they can sleep in the daytime," Frey disagreed. "Sharon can't sleep in the daytime. Her only income is her unemployment benefits. If she doesn't go out and look for jobs she loses her unemployment benefits."
Volkman set a motion to dismiss for August 21st in Judge Ariadne Symons court.
"Late in June I set out to contact the city attorney so that we could voluntarily work out a set of facts. John Barisone was less then cooperative. He told me " We'll dismiss it if you go and get written statements from the owners of the property and the lessee."
Ed contacted the manager of the spa. She told Ed that they don't allow nighttime sleeping in their parking lot "because it's illegal in the City." They were not going to write a letter for Sharon. Furthermore, the owner of the property was completely unavailable living out of town and without contact information.
"Their reasoning was 'we only oppose it because it's illegal. So we don't allow it.' We were caught in a catch 22," Ed said.
SYMONS SPRINGS A "SURPRISE" TRIALON DEFENDANT
Yet when Sharon and Ed arrived in court, they were surprised to see that the officer was there and so was Kelly Walker of the City Attorney's office. Frey reminded Symons that they were there to hear a motion to dismiss.
Judge Ariadne Symons said "The City Attorney is here, the officer is here, so we are having a trial."
In Symon's court, on August 21, 2009, SCPDOfficer Rodney Dugolow testified under oath that when he looked into the rear of Sharon's van, he witnessed Sharon sleeping underneath some blankets. Dugolow was the only witness for the prosecution. The only evidence presented was his testimony. When Ed asked him if Sharon had permission to be on the property, he testified that he didn't know.
After presenting the officer's testimony, the Prosecution rested.
PERJURY BY A SANTA CRUZ POLICE OFFICER?
Ed immediately moved to have the case dismissed since the officer didn't know if she had permission to sleep in her vehicle (the ordinance allows an exception for up to two vehicles per business if they have the written permission of the owner and the lessee.)
"I'm not going to grant that motion,"Symons said. “I'm persuaded she was sleeping.”
Ed Frey responded by telling her that his client's testimony differed from that of the officer and that he would then be forced to swear in Sharon Paight and put her on the stand in order to rebut Officer Dugolow's testimony.
"I don't think that's necessary," replied Judge Symons. "What else do you have?"
"I do have a statement from Karen Yen, a Harvard-educated psychiatrist with a practice in Scotts Valley. I have a statement here that to deprive someone of sleep cuts down the effectiveness of their immune system, it leads to depression, and is very bad for the health of the person"
Ed told the Judge that Sharon was prepared to testify that she was sitting up, wide awake with a light on at the time the officer knocked on her van. Sharon has said that she was in the back of the van sorting clothing at the time the officer contacted her. She was preparing to change her clothing prior to going into the Fitness center to take a shower. But she never got to testify to any of that.
“I'm persuaded she was sleeping,” Symons said. "And I believe the officer was being honest” she said. She recognized that police officers have a “difficult task.” But that “the way the windows were blocked off” and the question of whether she was legally parked there, in addition to the officer's testimony had convinced her that Paight had been sleeping and was properly cited. “I'm persuaded that she was sleeping.”
Sharon Paight shouted out “I wasn't. He's lying! I was wide awake.”
Symons did not admonish Paight for her outburst or cite her for contempt of court. Instead, she asked Sharon to be patient while she explained.
“She said she was a member of the 24 Fitness Spa but seeing the absence of a representative of 24-hour Fitness, we can't determine if she really was a member." Paight was NOT cited for trespassing and was never given the opportunity to show her membership card, yet Symons continued at some length about how difficult it was to determine if Sharon REALLY was a member of the spa.
Again Ed Frey tried to have his client testify on her own behalf but was incredulous when Symons again rebuffed him.
“I would never prevent you from allowing your defendant to testify. But the reason I stopped you, is that this case is going to be dismissed.”
She just told Sharon Paight “The reason I'm not going to have you testify is because I'm going to drop all charges against you.” Symons did not say she was dropping the case in the interest of justice. She didn't say it was because of insufficient evidence. In fact, she said the opposite. She SAID that there WAS sufficient evidence for a conviction, yet was dismissing the case. She announced "case dismissed" and the bailiff quickly urged the few supporters there to leave. Then Symons gratuitously thanked the City Attorney who was there to prosecute the case, but made no objection to her sudden and abrupt dismissal.
“And Mr. Walker, I thank you for appearing today. I know you don't normally do so in these instances.” Symons was referring to the odd practice in Santa Cruz County courts in which infraction cases charged by the City of Santa Cruz are not prosecuted by either a DA nor a City Attorney. Instead, only the officer testifies and the Judge (there is never a jury trial) serves as both the prosecutor and as the Judge. Despite the obvious conflict of interest between prosecuting a case AND being responsible for judging the merits of the case, this is the usual procedure in Santa Cruz for infraction crimes.
TRYING TO UNDERSTAND SYMONS
When asked why Symons had abruptly ruled to dismiss the case despite her declaration that she had been convinced that the City had proved its case against Paight, Ed Frey was direct.
"She did it in order to sweep it under the rug."
When interviewed outside of the courtroom after his victory, Ed Frey described Symons behavior as arbitrary and regal. "In the first part of the hearing I requested that we set up some sore of discovery procedure: some procedure by which you establish facts in order to create a record, and where you make an argument based on that record. But she wouldn't have it. She wouldn't hear it. She wanted to rush the thing through. Just shove it under the rug and dismiss it. When I attempted to establish facts on which we could make a foundational record, she wouldn't hear it, she wouldn't have it. She wanted no record of that."
"She's the Red Queen. She does whatever she wants," he concluded.
Sharon, however, couldn't believe that the police officer had lied under oath on the witness stand. She explained her outburst.
"I wanted to let her know that the officer was lying. That upset me more than getting the ticket, that an officer of the court was up there lying."
While Ed Frey and Sharon Paight cannot challenge the constitutionality of Santa Cruz' Sleeping Ban due to Symons unexplained dismissal of the case, they plan to file a complaint against the officer with the DA.
"Sharon and I are going to challenge this---we are going to ask the DA to prosecute the officer for perjury which is a felony," Ed promised.
June 6, 2008 Sgt. LeMoss on duty in Santa Cruz photo by Bradley
by Becky Johnson May 18, 2009
Santa Cruz, Ca. -- When Donna Deiss went to put sugar in her cup of coffee the last thing she thought was that she would be assaulted by a police officer, but that is what occurred. SCPD Lt. Christian LeMoss grabbed Donna from behind as she stepped into her RV, grabbed her arm, hurled her backwards and into a parked car, and then dropped her onto the ground hard enough to break her arm. She was initially charged with assault and battery on a police officer, and resisting arrest. Then a charge of drug paraphernalia was added three days later. Then that was dropped. By June 28th, the assault and battery on a police officer charge had also been dropped. Today, in a plea bargain, she plead no lo contendere to an infraction littering charge and the resisting arrest charge was dropped. She has been ordered to perform community service at a non-profit organization.
"I'm so relieved," Donna stated outside the courtroom as she met with her two attorneys, Ben Rice,Greg Coben and another supporter. "This whole case has been a nightmare." Rice defended Donna in her criminal trial. Coben is her attorney for her civil suit against the City.
LeMoss remains on duty.
A full panel of potential jurors waited in the trailer while Santa Cruz City Attorney, Delgadillo pitched the charge reduction. This could easily have been done at Friday's hearing on May 15th, but in a practice that has now become quite familiar, in cases where the City is likely to lose, they wait until the last possible minute to either drop charges or, as in this case, cut a deal.
"Ben spent all weekend preparing for trial," said one woman supporter. No doubt, most of those jurors would have preferred to go to their jobs, schools, or be at home with their families.
So what did Sgt. Christian LeMoss do at the Three Trees parking lot on W. Cliff Dr. last May?
Shortly after the incident,Zach Friend, the Santa Cruz Police Department spokesperson told reporters that “Deiss was with a group using drugs,” “Sergeant LeMoss asked her to stop moving, he identified himself as a police officer several times, and when he grabbed her arm to detain her she threw hot coffee into his face.”
The Santa Cruz Police Department press release, issued three days after the incident claimed "When the officer attempted to detain Ms. Deiss she threw a cup of hot liquid onto his face. Despite being burned, the officer was able to control and eventually take Ms. Deiss into custody ."
Deiss claims the officer never properly detained her, was not in uniform, did not identify himself as a police officer, and was driving an unmarked car. He had no reason to detain her, much less violently spin her onto a parked car, cuff her, then throw her on the ground so hard that he broke her arm. The cup of coffee she had been holding in her left hand spilled everywhere including on Ms. Deiss.
"It was lukewarm," she told HUFF. "I was not burned. I am surprised that the officer claims he was burned." Donna's shirt was stained with the spilled coffee.
No marijuana was found on Ms. Deiss at the time of her arrest. Another woman, known as White Dove was also arrested. She didn't have any marijuana either but two empty pipes were found in a garbage can near her.
The SCPD repeatedly identifies the lot by its street address. This raises the question of whether they even had jurisdiction to patrol that particular parking lot since it belongs to the State. A nearby City parking lot is repeatedly mentioned leading to some confusion as to where the incident occurred. The parking lot, locally known as "Three Trees" has been a gathering place for homeless and poor people, and at least one drum circle.
Today, one year and nine days after Deiss was brutally assaulted, injured, charged, and threatened, she has been convicted of littering. The evidence? A defense exhibit photo showing the coffee cup on the sidewalk where it lay after Sgt. LeMoss had broken Donna's arm and arrested her.
Attorneys continue to prepare for Donna's federal lawsuit against the City of Santa Cruz.
originally published at: http://www.indybay.org/newsitems/2009/05/14/18594788.php Photo by Becky Johnson taken at the Free Radio Santa Cruz studio in November 2008
Over 6 months ago on Sunday 11-2-08, I was approached by a Metro Security guard at the Metro Transit Center in downtown Santa Cruz. I was interviewing two homeless men for Free Radio Santa Cruz. The guard insisted I leave. I declined to do so. He called the police. He insisted I be given a citation for "Refusal to Leave a Business When Asked"--a charge with an apparent fine of $200+ Police did so and demanded under threat of custodial arrest that I leave the property. I was forced to do so. A week or two later I returned with a group of protesters and we reasserted the right to be in that public space.
HOW IT BEGAN
Two homeless men, Les and Jack, approached me after my Sunday radio show as I walked along Pacific Avenue and complained that religious sermons were coming out of the speakers at the Pacific Ave. entrance to the Metro Transit Center. They said they'd complained and were told to leave with the sermonizing continuing.
I then went to the Metro, found they were correct, and began recording what the Metro speakers were broadcasting. I then approached a security guard who refused to identify himself or his superior and declined to help me. In subsequent public records act requests, the guard involved still remained anonymous.
I then approached a Metro Supervisor who arrived on the property--Mr. Ed Nelson--who had the religious sermonizing turned off, explaining that classical music was customarily used to "discourage" assemblies of young people on the adjacent public sidewalk and in front of the Metro Center. All this is documented on audio tape available on line on this website (see below).
An hour later I returned and began interviewing Jack and Les near the sidewalk at the broad entrance way to the Metro Center next to Pacific Avenue. When a security guard directed two Latino men to "move on", I advised them that they had the right to be there. A second security guard, whom I later learned was named D. Delgadillo, then approached me and demanded I move. When I insisted he identify himself, he demanded I leave the property.
BUSTED FOR CHATTING AT THE METRO
The SCPD instead of defending my right to be there and advising the Metro Security guards to stop bothering me, forced me to leave the property on threat of arrest.
A Metro supervisor subsequently humiliated me further and banned for the day because I was visibly tape recording the complaint I made to her and her response.
More of the story can be found at: "Ticketing for Standing and Talking at the Metro Bus Stop Sunday" http://www.indybay.org/newsitems/2008/11/04/18548934.php
TRIAL ON MAY 15, 2009 -- FRIDAY AFTERNOON
The charge is refusing to leave a "business" when asked to do so.
Attorney David Beauvais of Berkeley will be defending me in the case. Attorney Kate Wells will be filing the subsequent federal law suit for damages. The trial will be before Judge Ariadne Symons without a jury. City attorney Barisone or one of his attorneys will presumably be appearing for the city.
SUBSEQUENT PROTEST
I returned to the Metro Transit Center a week or two after the police incident with a group of people, distributed fliers, and tried unsuccessfully to get Metro management to clarify what the rules were for the public and what the powers of their security guards were (i.e. could they simply ban people whose attitude they didn't like). I got no answer. However on this occasion, with video cameras rolling and lots of witnesses, the same guard did not harass or attempt to arrest us.
The story of the protest is told at in a subsequent posting on indybay.org/santacruz in the story--" Rotkin Claims: No Flyering Allowed at the Metro Center--Protest 11-26 11:30 AM" http://www.indybay.org/newsitems/2008/11/25/18552885.php
ROTKIN'S ROLE PROTECTING THE POLICE
Vice-Mayor Mike Rotkin (who has been on the Transit Board for some years) initially advised me there was no "flyering" allowed. I wasn't flyering when I was cited on November 2nd (simply standing and talking to two homeless guys). When I heard Rotkin's outrageous rule, I and others organized a peaceful protest that specific included distributing a flyer that described what happened on November 2nd.
We spoke to members of the public and distributed literature for about an hour. Rotkin subsequently called me and advised me that he was mistaken--that it was okay to flyer the public at the Metro Transit Center.
As long as it didn't "disrupt business."
Somewhat later in a subsequent interview, when I brought it up again, Rotkin apologized for the misunderstanding, but took no action to look into the bogus ticket.
He was also not helpful in securing documents for my trial, clarifying the rights of passengers, or advising the Metro and City Attorney to drop the case. He could have spared the city, county, and Metro Transit District money in these lean times by acting promptly and fairly to quash this groundless prosecution.
Instead we're going to trial Friday.
POLICE MISUSING THE LAW TO DRIVE AWAY THE POOR
The trial will also highlight the collusion between security guards and the Santa Cruz Police Department in accepting an unlawful arrest.
Members of the public at the Metro are supposedly protected by a law that requires they be given written notice, a specified period of time, and an opportunity to have a hearing--as well as the right to use the facilities unless actual disruption is occurring (MC 9.60.0101 - TRESPASS ON PUBLIC TRANSIT FACILITIES)
Police and Metro Security Guards have colluded instead in using an inapplicable broader law that allows private businesses to order people off their property. Obviously, the Metro is not a private business, but a public facility. Even if it were, MC 9.60.010 REMAINING ON BUSINESS PROPERTY AFTER A REQUEST TO LEAVE. provides exceptions for "prohibited discrimination", "duties relating to common carriers", and "inhibition of...freedom of speech or assembly."--all of which were involved.
It took six months worth of Public Records Act requests and discovery demands to get the SCPD to cough up some statistics: Not just me but five other people have been apparently wrongly charged under this broader law instead of the more appropriate MC.9.60.0101). It's a nice way of sweeping people away from an area without any due process.
Of course, that's what happens to homeless people all around Santa Cruz.
AUDIO OF THE ENTIRE INCIDENT AVAILABLE
Those who want to hear what happened on November 2nd can go directly to the audio file included in the first story. I recorded virtually everything that I and the various guards, supervisors, and police said--as well as the original complaint I received that the Metro was broadcasting religious sermons over its loudspeakers.
It may have been management resentment at my raising this issue with the security guards that motivated the subsequent harassment.
I was also critical of the guards for harassing poor and possibly homeless people hanging out there who were doing nothing wrong. And refusing to identify themselves or their superiors when asked to do so.
The public is welcome to attend the trial. I shall move to have it audio recorded for public broadcast, but judges have become increasingly secretive in the past few years, so I may be banned from making a recording.
If you can't make it on Friday, I'll be discussing the case on my Sunday show at 11 AM on Free Radio Santa Cruz at 101.1 FM (http://www.freakradio.org).
Santa Cruz, Ca. -- We were a couple of months in the City Hall Sleepers Protest in 1996 when Happy arrived. He was a very enthusiastic addition to our rag-tag protest. I don't know if Happy was institutionalized then or just homeless. One or the other. He was always either institutionalized or homeless. His only living relative was his mother who was conserved in a nursing home over the hill.
"Have a happy, happy Day!" he said. He looked like he had just left the Summer of Love in Golden Gate Park in 1968. He wore blue jeans and a hippie head band, love beads, peace signs, and he loved to smoke pot. He was "Happy" to us.
The SENTINEL reported that he had failed a more secure locked facility due to "assaultive behavior" and then been placed in the less secure, Juan Pablo Group Home. Commented local attorney, Kate Wells " That makes no sense at all. If he failed due to violence, why would they place him in a less secure facility?"
On November 12, 1997 Happy John Dine was shot to death by SCPD Officer Conor Carey on the sidewalk on Front St. in front of the Coast Commercial Bank as he waited for a bus. He was transferred by ambulance to Dominican Hospital where he died.
SMEARING THE VICTIM BEGINS
In the SENTINEL, after he was killed we learned he was "John Dine aged 41" who had "a dark side" with a "history of violent behavior." SENTINEL writers Robert Gammon and Karen Clark painted a scenario that justified police shooting him to death as he peacefully waited for his bus. Anything to villify the man after his death was allowed. Cross-checking information was not necessary.
The Sentinel reported "witnesses said that even before the shooting, Dine was acting strangely. 'Flipping off' cars and yelling at no one in particular."
This statement is so disingenuous. There WAS a witness who reported that months prior he had seen Dine "flipping off" cars and yelling at no one in particular. But THAT DAY, other than Catalyst bouncer, Ben Newman, no one had a problem with John Dine. The article is written so readers believe Dine was acting out in that fashion just prior to being shot. He wasn't.
When I read the reports which documented Dine's "history of violence" at the Juan Pablo group home in which he lived, they said that Dine had hit his own head against a wall. That almost sounds like a cover-up in itself for violence committed against Dine by staff or other patients. He had no history of committing violence against anyone. But for SENTINEL readers, Dine had " a dark side", a "history of violence," and was "flipping off cars and yelling " just prior to being shot.
Here is what the eyewitnesses actually said.
"the man didn't put his arms up or shout anything. I didn't see him display any type of weapon.Why would the cops shoot this guy if he didn't do anything?" --Aloni Balawedger New Leaf Market worker who witnessed the shooting from the roof of the New Leaf Market--quoted in the San Jose Mercury Nov 14, 1997,
They just walked up and blasted the guy! He told them to "fuck off" and they just blasted the guy...cold-blooded murder! Point blank at five feet! He had his hands down. There was no weapon in his hands." ---eyewitness Tom Murphy who was interviewed by the police and then left town for his own safety
"Happy was holding nothing that I saw." --eyewitness Stacey Buckalew who was in the front seat of the car directly behind Carey's police car. The car had stopped because the police car obstructed its forward movement. Stacey and boyfriend, Mike Schultz both called the shooting of Happy John Dine "murder."
Longtime Santa Cruz homeless advocate, Becky Johnson has written for Street Spirit, produced "Bathrobespierre's Broadsides: Civil Rights for the Poor" and has lobbied for homeless civil rights with HUFF, Homeless United for Friendship & Freedom, and produced her own television show "Club Cruz" which covered local and poverty issues. Currently Ms. Johnson is one of the founders of Peace Camp 2010 located on the courthouse steps until the City of Santa Cruz repeals the Sleeping Ban.
